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Dual Jurisdiction: Also in Need of ‘Modernization’

“Dual Jurisdiction,” for those who may not know, generally describes a processing plant where more than one product line is being produced, and some of the facility’s products fall under the Department of Health and Human Service’s Food and Drug Administration (FDA) agency for regulation, and some are regulated by the Food Safety and Inspection Service (FSIS) agency within the U.S. Department of Agriculture.

The United States’ method of assigning responsibility for food product safety regulation and inspection between the FSIS and the FDA is truly an embarrassment to America, and impossible to explain or even justify. It needs to be “modernized.”

Food Safety News ran an article on Dec. 16, 2010, by Gretchen Goetz, titled “Who Inspects What…”, an excellent review of the scrambled mess that exists. For example, five decades ago it was decided closed-faced sandwiches containing poultry did not need daily inspection from FSIS, but instead could fall under the minimal inspection, if any, of the FDA. But open-faced poultry sandwiches still get FSIS daily inspection.

FSIS and FDA held a public meeting on the issue of jurisdiction in Chicago on Dec. 15, 2005. Anyone wanting to better understand the debate can access that transcript here.

Because of the confusion over who does what, we repeatedly hear politicians say “there are 12 agencies with food safety responsibilities, and we need to create a single food safety agency.” Of course, those who really follow food safety issues know that number is just as inflated as the statement we will no longer hear that “last year 76 million Americans fell sick from a foodborne illness.”

In a Food Safety News article posted Dec. 16 titled “DeLauro Renews Push for Single Food Safety Agency,” by Helena Bottemiller, the Congresswoman (D-CT) is quoted as saying that after she saw the new CDC estimates for foodborne illnesses, she decided to renew her efforts to legislate a single food safety agency, just as she has been trying to do since 1999.

Of course the Congresswoman also used the CDC’s annual report on the incidence of infections with pathogens transmitted through food that was released April 16, 2009, for the same purpose. The report said that all major pathogens had seen significant reductions in illness rates over 10 years, with the exception of Vibrio. She cited the staggering rise of 85 percent in Vibrio illnesses over 10 years as a reason for a single food safety agency, not bothering to point out the total number of illnesses in 2009 was only 160. Or that the illness rate is rising because our shallow ocean bays, where oysters grow, are becoming more contaminated and we continue to consume raw oysters.

Senator Coburn (R-OK) made comments quoted in the article that seem to indicate some agreement with the Congresswoman that we need a change. I agree with his quotes about the current system to delegate inspection authorities when he says, “First of all, it is stupid. Second of all, it is inefficient.”

So fix it, Senator. But do not create a single food safety agency. The FSIS and FDA are so far apart in their line of thinking, their culture, and their activities that to combine the two would truly create at least a short term food safety crisis.

Combining the two does not create the funding necessary to increase inspection of products currently regulated by FDA, unless you either significantly increase the funding to this new agency, or you take funding from what is currently FSIS’s budget and eliminate daily and continuous inspection for meat and poultry products. I don’t see either of those scenarios playing out in our current environment.

Creating a huge, monolithic, federal agency has been done in recent years. Most don’t think it is working out that well. Creating another would be to fail to learn from our mistakes.

We all know that FSIS has authority for meat, poultry and egg products, and FDA has just about everything else. It is pretty simple to comprehend, really, until you get to all the exceptions within current statutes and regulations, many of which were decided by different Secretaries of Agriculture and Health and Human Services over the years.

So, Congresswoman DeLauro, and Senator Coburn, I have an idea–one that is budget neutral, does not cost bargaining unit jobs, will create common sense out of confusion, is more open and transparent, and one that I hope everyone can understand.

Congress started me looking for a rational solution in 2008 when they passed legislation to move catfish inspection over to USDA, a law that protects catfish farmers in our Southern states by requiring daily and continuous inspection both here and abroad. But it was also a move that drew attention to the large amount of imported fish and seafood we consume in this country daily, and to some of the fish farming methods utilized by those who export to us that just might be a threat to our health.

I would propose giving USDA all animals and animal products, like eggs, cheese and milk. This would include all fish and seafood, not just catfish, and would finally bring bison under FSIS regulation and inspection. This would also eliminate, for example, the confusion and the debate over whether we should develop a tolerance level for Listeria in deli cheeses, but continue a no-tolerance policy for Listeria in deli meats. And decide who actually has responsibility for egg laying facilities and their products.

Putting all seafood and fish with the USDA as an animal meat product would also help establish a defensible stance on food safety policies, and would help eliminate trade retaliation from countries that want to export fish and seafood to us, but cannot meet the new regulations being written by FSIS.

As a trade for that extra responsibility and cost to FSIS, I would propose giving FDA all pizzas and sandwiches containing meat that has already been inspected multiple times and received the USDA stamp of approval. I don’t believe that adding Canadian bacon to a piece of dough with plenty of cheese and tomato sauce, spinach, green peppers and onions immediately turns that pizza into a food safety risk so high that it requires daily, continuous inspection.

I mean, seriously, how many foodborne illnesses have been blamed on Canadian bacon as compared to onions, peppers, tomatoes and spinach?

I would also propose giving FDA all canned and bottled products. The meat in vegetable beef soup has been inspected on the hoof, as a hanging carcass and as a processed product. It is now being cooked to temperatures that guarantee you will not contract E coli or Salmonella from eating the soup. The same rationale applies to baby food, such as chicken and split peas.

Your health risk from consuming canned and bottled products is botulism, and the FDA has most of the experts in the canning process already in its agency. Having two lines of product going down two different conveyor belts at the same time, one overseen by an FSIS inspector daily, one an FDA product that receives little or no attention, makes absolutely no sense when you understand the process and the risks.

The resistance to a common sense move as I have tried to descri
be, as opposed to a very costly and potentially disastrous combining of the two agencies, will be tough to overcome. There are those who will want to see all inspection discontinued for the dual jurisdiction products, while at the same time there will be those who want to expand to daily, continuous inspection for the same products.

Risk assessment and food safety policy should trump the politics on this issue. No one ever said change was easy, but Senator Coburn did say the system we have in place now is “stupid” and “inefficient.” I hope other policy makers agree.

My concern about any legislative change to food safety regulation is that it’d just be another attempt at passing the worst parts of FSMA – Namely, crushing regulation on small producers, leaving only the mega-giants to feed us. Given the emotional, bullying arguments used to push FSMA, I doubt we’ve heard the last from the supporters of that crap.

Thanks, Dr. Raymond, for your clear exposition of the situation and your ideas.
Everything you’ve written makes good sense to me.
I look forward to the response of those who support a single food safety agency…but I’m not holding my breath waiting for them. I urge Food Safety News to specifically request Rep. DeLauro’s and Sen. Coburn’s responses.

Thanks, Dr. Raymond, for your clear exposition of the situation and your ideas.
Everything you’ve written makes good sense to me.
I look forward to the response of those who support a single food safety agency…but I’m not holding my breath waiting for them. I urge Food Safety News to specifically request Rep. DeLauro’s and Sen. Coburn’s responses.